ML20133H697
| ML20133H697 | |
| Person / Time | |
|---|---|
| Issue date: | 08/01/1985 |
| From: | NRC COMMISSION (OCM) |
| To: | |
| References | |
| REF-10CFR9.7 NUDOCS 8508090461 | |
| Download: ML20133H697 (38) | |
Text
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ORIGINAL UNITED STATES OF AMERICA g-NUCLEAR REGULATORY COMMISSION In the matter of:
COMMISSION MEETING Affirmation / Discussion and Vote (Public Meeting)
Docket No.
(
Location: Washington, D. C.
Dcte: Thursday, August 1, 1985 Pages: 1 - 34 8508090461 850801 PDR JOCFR PT9.7 PDR ANN RILEY & ASSOCIATES Court Reporters
(-
1625 I St., N.W.
Suite 921 Washington, D.C. 20006 (202) 293-3950
- 6 e
1 D 1 SC LA 1 M ER 2
3 4
5 6
This is an unofficial transcript of a meeting of the 7
United States Nuclear Regulatory Commission held on Thursday, 8
August 1, 1985 i n the Commission's office at 1717 H Street, 9
N.W.,
Washington, D.C.
The meeting was open to public 10 attendance and observation.
This transcript has not been 11 reviewed, corrected, or edited, and it may contain 12 inaccuracies.
13 The transcript is intended solely for general 14 informational purposes.
As provided by 10 CFR 9.103, it is 15 not part of the formal or informal record of decision of the 16 matters discussed.
Expressions of cpinion in this transcript l
17 do not necessarily reflect final determination or beliefs.
No 18 pleading or other paper may be filed with t he Corom i s s i on in 19 any proceeding as the result of or addressed to any statement 20 or argument contained herein, except as the Commission may 21 authorize.
22 23 24 25
e
. s 1
1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION 3
4 5
AFFIRMATION / DISCUSSION AND VOTE 6
(PUBLIC MEET. ING) 7 8
Nuolear Regulatory Commission 9
Room 1130 10 1717 "H"
- Street, N.W.
11 Washington, D.C.
12 13 Thursday, August 1,
1985 14 15 The Commission met in OPE 1 session, pursuant to 16 notice, at 12:40 o' clock p.m.,
NUNZIO J.
PALLADINC, Chairman 17 of the Commission, presiding.
18 COMMISSIONERS PRESENT:
19 NUNZIO J.
PALLADINO, Chairman of the Commission 20 THOMAS M.
ROBERTS, Member of the Commission 21 JAMES K.
ASSELSTINE, Member of the Commission 22 FREDERICK M.
BERNTHAL, Member of the Commission 23 LANDO W.
- ZECH, JR.,
Member of the Commission 24 25
. - _ -y e
.s 2
1 STAFF AND PRESENTERS SEATED AT COMMISSION TABLE:
2 S.
CHILK 3
H.
PLAINE 4
J.
ZERBE 5
H.
HOYLE 6
7 8
9 10 11 12 13 14 15 16 17 18
. 19 2C 21 22 23 24 25
d 4
3 1
P ROC EED I NG S 2
CHAIRMAN PALLADINO:
Please come to order.
This is 3
an affirmation / discussion session.
We had one item listed on 4
the agenda.
There is a proposal to have another item on the 5
agenda but let's go with the first item on the agenda and then 6
we will address the second item.
7 MR. CHILK:
The first item, Mr. Chairman, is 8
SECY-85-222 entitled, " Final Backfit Rule."
9 Here the Commission is being asked to consider 10 whether to issue a final revision to 10 CFR Parts 2 and Part 11 50 establishing standards and an agency discipline of the 12 future management of backfitting for power reactors.
13 All the Commissioners have voted on this.
Three 14 Commissioners have reached an agreement on a revision to the 15 final backfit rule which was distributed to you on the 31st.
16 There are two Commissioners that desire a discussion on the 17 matter and I would like to turn the' meeting over to you and to 18 them.
19 CHAIRMAN PALLADINO:
To introduce the discussion, 20 two of the Commissioners feel that they need more time for 21 dialogue and for digestion of the present draft.
I am going 22 to ask each of the two to express their concerns.
4 23 COMMISSIONER ASSELSTINE:
Sure.
I will go ahead and 24 start, Fred, and you can chime in after that.
25 My feeling was that it is just not quite ripe today
i 4
1 to affirm.
Fred's vote came in yesterday, late yesterday.
2 While there is a version, my office got it, I think, this 3
morning or last night.
4 There hasn't been a real opportunity for us to talk 5
about some of the areas of differences, both some of the 6
things that I had proposed and some of the things that Fred 7
had proposed.
My thought is that this could use just a little 8
more discussion among ourselves before we affirm the rule.
9 It is something that we have been on for a long 10 time.
It is a significant matter and while I don't want to 11 see the thing, don't want to delay the thing for an extensive 12 period of time, it does seem to me that the collegial process 13 could do with a bit more discussion of the issue than we have 14 gotten so far particularly given the fact that I have been out 15 of town and that votes have been coming in fairly recently on 16 the issue.
17 So that was my feeling why I thought that we would 18 be best served by not affirming the backfit rule today and 19 spending just a bit more time on it.
20 I would be prepared to do that within the next 21 couple of weeks and figure out a way to affirm it given the 22 fact that we have various people who are out for different 23 periods of time during the month of August.
24 I think that ought to be doable.
Fred.
25 COMMISSIONER BERNTHAL:
I certainly would concur in
i 5
1 that and encourage that, We have votes within the last week, 2
more than one vote within the last week.
3 We are now at the point where we were some three 4
months when we did the severe accident rule which is a rule of 5
some comparable significance.
It wasn't a rule even.
It was 6
a policy statement.
7 We are now roughly at the point where with five 8
Commissioners' votes in, it took us three months.
I don't 9
propose that in this case but we certainly allowed the 10 collegial process to work ad nauseam in that particular case 11 and it just seems to me that it is appropriate here to take a 12 little bit of time to consider the five votes that have come 13 in.
14 Jim got in at eleven o' clock this morning.
He 15 hasn't even read the suggested version.
I don't think it is 16 fair to ask him to vote an hour later after he has been in a 17 meeting.
18 CHAIRMAN PALLADINO:
Let me make an observation or 19 two and then I will ask if there are other Commissioner 20 comments.
I will gone until the night of the 15th.
21 COMMISSIONER BERNTHAL:
Maybe there is a 22 possibility, Joe, that you could -- and I don't know if 23 something could be worked out in your schedule.
24 CHAIRMAN PALLADINO:
I am so committed now that if I 25 tried to adjust to get back by one day, it would cause I think
i 6
1 diplomatic hardships because people are very sensitive.
2 COMMISSIONER BERNTHAL:
I am not suggesting that.
I 3
didn't know whether there was a cusp there somewhere.
4 CHAIRMAN PALLADINO:
I didn't bring the schedule 5
with me and I should have.
I think the 16th, we don't have 6
enough people here.
7 The more important thing is that I won't have the 8
opportunity for participation of the dialogue.
However, some 9
dialogue could conceivably go on during those two weeks and 10 then I can pick up when I get back.
11 What I am saying is, I don't see any action on this 12 until possibly mid-September if we go this route.
13 I am also appreciative of the fact that we have been 14 a long time on this and I do think while I have a strong 15 desire to see it get out, I would rather have it get out with 16 the Commissioners feeling they have had appropriate airing of 17 their views than to have it get out with a feeling of rancor 18 or acrimony or whatever.
19 COMMISSIONER BERNTHAL:
It is just manifestly 20 unrealistic to think that even if all the votes had come in a 21 week ago to think that on something as important as this that 22 everything is going to be resolved and settled in a week.
23 We have all been around this place long enough to 24 know that that is highly unlikely on any really important 25 issue and this is a very important issue.
7 1
CHAIRMAN PALLADINO:
I should point out that on all 2
our issues, we always have last minute things that come up but 3
this, I think, is perhaps a little more than last minute in 4
the usual sense of the word as I use it.
5 Let me hear if there are other comments?
6 COMMISSIONER ROBERTS:
You have to know when to hold 7.
them and when to told them!
8 (Laughter.)
9 COMMISSIONER BERNTHAL:
Which way do I interpret 10 that?
11 COMMISSIONER ROBERTS:
I don't think I need to 12 elaborate on that.
You know exactly what I mean.
We have 13 been fooling with this for four years and you can talk about 14 collegiality and airing of views, it is not going to change o"ught to vote.
15 anything and I think we 16 COMMISSIONER ZECH:
I fully recognize that this has 17 been going on for an awful long time.
I think all of us have 18 been personally involved in trying to get our views across.
19 I'am ready to vote.
It seems to me that the issue 20 is an important one.
It is kind of discouraging to come all 21 the way down to the goal line like it looks like we have come 22 and then not be able to put the ball across.
23 COMMISSIONER ROBERTS:
A lot of colorful analogies 24 here today.
25 CHAIRMAN PALLADINO:
That is what brings us to
8 1
overtime.
2 (Laughter.)
3 COMMISSIONER ZECH:
I. respect my colleague's desire 4
to fully feel that they have understood all the last views and 5
so forth so I would be willing, Mr. Chairman, to add some more 6
time.on with due respect to my colleagues, but I really would 7
suggest that we set ourselves a deadline on this issue and 8
perhaps we can resolve it here even if it has to be the middle 9,
of September, but sometime here we ought to try to get this 10 one resolved.
)
11 COMMISSIONER BERNTHAL:
Lando, I am prepared to vote 12 but I think we ought to vote with an unders'.anding of the 13 issues.
For heavens sake, the severe accident thing, we were 14 at this point three months at least before and I would say 15 that if this is the goal line, the ball sat on the one inch 16 line for three months while various individuals and I don't 17 believe I was one of them raised various issues after the 18 fact.
19 Here we finally reach this point and we want a few 20 days to attempt to reach a collegial decision.
I am prepared 21 to' vote, too, but I suspect what we are going to get is if I 22 may use the wrong terminology here a piece of bad legislation 23 if we vote today.
24 It seems to me that it is worth taking some time to 25 see to it that everybody understands clearly what we are up to
9 1
here and you know the issues, and I would suggest that the 2
proposal before us goes beyond what the original intent of 3
this whole process was.
4 That is the issue.
I am prepared to vote on it but 5
we won't end up with a very satisfactory vote.
I am happy to 6
vote and if the Chairman wants to call a vote, I will vote.
7
, COMMISSIONER ASSELSTINE:
That is the way I feel, 8
too.
9 CHAIRMAN PALLADINO:
Now you make it hard for me to 10 do what I was about to do.
11 COMMISSIONER BERNTHAL:
The idea here is to try to 12 reach a consensus and it is not a question of delaying it.
If 13 we get a better product, it is worth some delay after we 14 screwed around with for four years.
That is my opinion.
15 CHAIRMAN PALLADINO:
I am ready to vote but I also 16 appreciate that some of the t h o u g h't s that have been expressed 17 were only expressed in the last couple of days and I don't 18 think that the opportunity has existed for dialogue.
19 I have attempted to take some of the points 20 expressed by you to other Commissioners, but I think it would 21 be helpful if some of these were exchanged individually 22 between you.
23 I,
as Chairman, have to recognize that we are a 24 collegial body and that we do have to provide opportunity for 25 each of us to cogitate.
10 1
I am going to vote that we permit the delay, we set 2
a deadline and agree to vote not later than -- oh, I hate the Friday, the 13th.
3 date 4
(Laughter.)
5 CHAIRMAN PALLADINO:
I remember once being on the 6
governor's science advisory committee in Pennsylvania and we 7
were scheduling a next meeting and the governor's science 8
advisor says, "Why that is Friday the 13th.
We don't want to 9
meet on the 13th."
The attorney that was monitoring the 10 meeting says, "And you were the science advisor?"
11 COMMISSIONER BERNTHAL:
But you are going to be in 12 Japan?
13 CHAIRMAN PALLADINO:
No.
I am going to be in Japan 14 until the 15th of August.
Then I am here.
15 COMMISSIONER BERNTHAL:
Oh, you are proposing the 16 13th of September?
17 CHAIRMAN PALLADINO:
September.
18 COKMISSIONER ASSELSTINE:
all right.
19 COMMISSIONER BERNTHAL:
Is it impossible to vote 20 this out to try to please everyone here while you are in 21 Japan, is that possible?
22 CHAIRMAN PALLADINO:
It depends on how it changes.
23 I am not having the opportunity to interact.
However, I would 24 encourage you to try to reach a consensus and if you have four 25 votes, then I guess it is okhy.
But I would like the
i 11 1,
opportunity to interact.
2 COMMISSIONER BERNTHAL:
I could leave town late 3
today and I am perfectly willing to sit down and it may be 4
that over this single issue which I guess we can't mention the 5
issue here, we have a public meeting, over the single issue 6
whether you want to subsume the rulemaking within the backfit 7
rule, this kind of second order layering of a rule on a 8
rulemaking procedures, if you want to do that and if there is 9
no room for give or compromise, then we might as well vote and 10 we will have a three/two vote.
11 That is really where we are here because that seems 12 to be the key issue.
13 COMMISSIONER ROBERTS:
I think you have said it very 14 succinctly.
15 COMMISSIONER BERNTHAL:
I would agree that if there 16 is no interest in reaching some compromise on a new element 17 that was thrown into this process very late in the process, 18 then we might as well vote.
19 CHAIRMAN PALLADINO:
So you are saying that you are 20 ready to vote?
21 COMMISSIONER BERNTHAL:
I am ready to stay in town 22 and spend some time this afternoon and see if there is some 23 basis here for reaching an agreement on that particular issue 24 but right now, we are hung up on an issue that I know you have 25 mixed feelings about and you can speak for yourself but I
9 12 1
think is an important issue and I believe many of our staff do 2
as well 3
COMMISSIONER ASSELSTINE:
I would have to say that 4
is not the only issue that I am concerned about.
5 COMMISSIONER BERNTHAL:
There is at least one killer 6
issue here, I guess, that is the way I would put it.
7 CHAIRMAN PALLADINO:
That is the one that would 8
influence your vote.
9 COMMISSIONER BERNTHAL; You start out with the one.
10 If you reach a negative conclusion that we are not going to 11 agree on that, then as far as I am concerned we can vote it 12 out today and at least we will score a field goal.
13 (Laughter.)
14 CHAIRMAN PALLADINO:
I have forgotten the schedule 15 for the rest of the day.
16 COMMISSIONER ROBERTS:
I have meetings all 17 afternoon.
18 CHAIRMAN PALLADINO:
Would you have no time at all?
19 COMMISSIONER ROSERTS:
I will make time.
I think 20 this is an exercise in futility.
21 CHAIRMAN PALLADINO:
Sometimes we have to exercise 22 futility.
23 (Laughter.)
24 CHAIRMAN PALLADINO:
Can we try for something at 25 4:30 to see if we can make any more progress during the course
a f
13 s
1 of the day?
That would give me a chance to interact and there 2
are a couple of items that you have that I was hoping to 3
interact on.
4 COMMISSIONER BERNTHAL:
I confess that I am being a 5
little self-serving here because Jim obviously has other I don't even know, in 6
things and has not had a chance to 7
fact, what is on his mind nor do I think the rest of us know 8
what is on his mind.
9 COMMISSIONER ROBERTS:
I think I know what is on his 10 mind.
I think it is pretty crystal clear.
11 COMMISSIONER BERNTHAL:
But there has been 12 discussion of who is willing to accept what here.
It is 13 self-serving what I have said in the sense that I articulated 14 the issue that to me is very important and if there is no 15 agreement on thtt, then I know how I will vote and the rest of 16 you, I guess, can decide how you will vote.
17 Jim, in fairness, has even h3d less time than the 18 rest of us to look at this.
19 COMMISSIONER ASSELSTINE:
I don't know what else you 20 have in your vote, Fred, because I haven't read it yet.
21
- CHAIRMAN PALLADINO:
I have been over yours and I 22 have several problems with some of yours, waiting for a report 23 on uncertainties I think is something that would just say we 24 wold never get it out.
25 COMMISSIONER ASSELSTINE:
Because we can't explain
14 1
how we deal with uncertainties.
2 CHAIRMAN PALLADINO:
Let me say something about 3
uncertainties that I think is pertinent to the discussion.
4 Uncertainties diminish when you have a lot of data.
When you 5
have a lot of accidents and you know the actuarial rate, then 6
'the uncertainties go down.
7 Uncertainties increase almost without bounds when 8
you approach zero in a frequency of events.
So you are never 9
going to get rid of uncertainties.
If I recall my physics 10 right, that is part of the Eisenberg Uncertainty Principle.
11 COMMISSIONER ASSELSTINE:
I couldn't agree with you 12 more, Joe.
13 CHAIRMAN PALLADINO:
But I don't think that we can 14 sit here and say that we are going to hold up important rules 15 because we have to get a study and draw some definitive 16 conclusions on uncertainty.
17 COMMISSIONER ASSELSTINE:
I think you misapprehend 18 my point.
My point was precisely the same point that the 19 Advisory Committee on Reactor Safeguards made in our last 20 meeting with us which is if you look at this agency's 21 description, not a numerical description, a qualitative 22 description of how we deal with uncertainties, that 23 description is sophomoric.
24 The only place that i have been able to find where 25 that is put down on paper is that NUREG on severe accidents
15 1
and if you look at those pages, there are about five or six 2
pages and most of the pages are blank.
What is there says, 3
"will be filled in later."
It is terrible.
4 It is not that I want uncertainties eliminated.
It 5
is not that I want uncertainties drawn down to a quantitative 6
amount.
All I want is a simple statement of how this agency 7
deals with uncertainties and that is what the ACRS has been 8
telling us has been missing for years.
9 I t-is not just me.
It is the members of the ACRS 10 that are saying, "You haven't done that.
You haven't even 11 explained, the staff hasn't even explained."
I don't know how 12 you can go ahead with a backfitting rule that finds as its 13 fundamental basis these cost benefit analysis.without being 14 able to explain how you deal with uncertainties.
15 It just hasn't been done.
16 CHAIRMAN PALLADINO:
Wait a minute.
I don't think 17 they are necessarily related and the fact that a procedure 18 does not exist doesn't say that all things stop.
We are 19 operating plants.
We are making decisions and whether or not 20 we have worked out a methodology, we still have to go forward.
21 In my professional career, I have had many 22 uncertainties that took quite a while to define in terms"of 23 scope and methodology but that didn't mean that you stopped.
24 As a matter of fact, I could tell you right now that 25 just on the matter of aspirins, there is not a good rationale
i e
e 16 1
why aspirins work and there is a great deal of uncertainty on 2
the rationales but we use them every day and~they work.
3 COMMISSIONER ASSELSTINE:
But at least you have some 4
understanding of how you are dealing with those uncertainties 5
and how they are being considered.
6 CHAIRMAN PALLADINO:
I have a fundamental problem 7
with that part.
8 Another part, you introduce averted 9
COMMISSIONER ASSELSTINE:
Off-site property costs.
10 CHAIRMAN PALLADINO:
O'ff-site property costs.
11 COMMISSIONER ASSELSTINE:
I didn't introduce it.
12 That is something that is required by law that we consider.
13 CHAIRMAN PALLADINO:
Excuse me, but how we do it is 14 equally important and I think that that is a matter that I 15 have suggested any number of times be a policy matter, taken 16 up and we define how we are going to handle off-site property 17 averted costs.
18 You also introduce averted on-site property costs 19
'and that I have so much difficulty with yet and I am not 20 saying that it is difficulty because I disagree with you, I 21 just haven't settled that in my own mind.
22 I don't think they are necessary to the backfitti'ng 23 rule.
I think they are necessary for us to deal with.
24 Perhaps the better place is the safety goal or I am willing to 25 deal with it as a separate matter and come up with a policy
17 1
statement.
2 COMMISSIONER ASSELSTINE:
It may be that the 3
disagreements are so fundamental even on the rulemaking issue 4
that wa just can't resolve it.
5-CHAIRMAN PALLADINO:
Listen to what I said.
I said 6
I would be willing to work on these two separately.
7 COMMISSIONER BERNTHAL:
Why is rulemaking necessary 8
to the backfitting rule?
We didn't start out this process 9
just so everybody understands what the issue is here, we began 10 the backfitting rulemaking process to apply an order and a 11 procedure and a discipline to backfitting.
?
12 Now we have come in with a rule that not only is 13 going to apply order and discipline and procedure to 14 backfitting, it is going to apply order and discipline and 15 procedure to rulemaking even though we already have the 16 Administrative Procedures Act, 17 So you are applying a rule to govern rulemaking.
It 18 is a curiosity that still escapes my imagination on how that 19 is relevant to the backfitting rule.
20 COMMISSIONER ASSELSTINE:
I have to say on the cost 21 question, the whole purpose of this rule is to spell out for 22 the staff what factors to consider in making backfitting 23 decisions.
24 This rule spells out in great detail all of the 25 costs involved in a backfit, the economic costs, the down time
18 1
for the plant, the cost of buying the hardware and making the 2
change and I don't understand how you can issue
- a. rule without 3
making those fundamental decisions of which ones-you want the 4
staff to consider and off-site ps.operty costs, I recognize the 5
on-sites are a closer question for many of you, but the 6
off-site property costs we have already said on the severe 7
accident policy statement that that has been this agency's 8
consistent policy to consider those and to not put those in, I 9
just find unfathomable.
10 CHAIRMAN PALLADINO:
I never said that the past but 11 I do agree in the recent past that they are an important 12 consideration.
That was one area where I would agree a little more 13 14 time would help me because I was asking my staff, "Can we 15 write something that indicates there is consideration without 16 having at this moment to defire it."
I think the wording that 17 you have could imply that we take the total off-site plant 18 property loss that is averted and I think it is more subtle 19 than that.
20 Let me make a proposal and see if you will agree.
I 21 suggest that we not vote on it at this time but that we 22 reconvene at 4:30 and attempt to vote.
23 COMMISSIONER BERNTHAL:
Wait a minute.
24 COMMISSIONER ASSELSTINE:
I don't think that you are 25 going to settle uncertainties ty this afternoon.
19 1
COMMISSIONER BERNTHAL:
I do have certain 2
constraints.
I have a commitment in Tennessee to visit one of 3
TVA's plants.
I have checked every possibility.
What I can 4
do though I would prefer not to is catch a flight at three 5
o' clock or shortly after three and take my chances on getting 6
the connector and if not, I can drive from Allanta to 7
Chattanooga so I am willing to do that.
8 CHAIRMAN PALLADINO:
What time do you have to leave 9
here?
'. 0 COMMI SSIONER 'dERNTHAL :
I would have to leave here 11 around 2:30.
I don't know if that helps.
It may not be worth 12 it.
13 COMMISSIONER ROBERTS:
I don't believe you are going 14 to resolve this.
15 COMMISSIONER ZECH:
It doesn't sound like we are 16 ready to vote at all, What we are really talking about'is 17 disciplining the backfitting system.
That is what we are 18 trying to do, discipline the NRC, discipline the utilities and 19 so or effort is much broader than some of these other things.
20 Also, on the rulemaking thing, it seems to me that 21 what we are trying to do is treat backfitting consistently and 22 discipline the whole system whether it is in rulemaking or 23 otherwise and that is my point.
24 COMMISSIONER BERNTHAL:
Rulemaking has the
~
25 Administrative Procedures Act for discipline and we have only
20 1
ourselves 2
COMMISSIONER ZECH:
No reason to exclude it though 3
from backfitting.
4 COMMISSIONER BERNTHAL:
The Commission votes on 5
those things, Lando.
We vo+e on a rule.
6 COMMISSIONER ZECH:
That is fine.
7 COMMISSIONER BERNTHAL:
We take six months to a year 8
to get a rule out and if we don't trust ourselves, then it is 9
our own fault.
10 COMMISSIONER ZECH:
But to imply that you don't need 11 the discipline in the rulemaking in the whole backfitting 12 issue, it just to me it doesn't make sense.
Why not?
It is 13 not going to hurt anything and it is the right thing to do and 14 it seems to me that we ought to get on with it.
15 COMMISSIONER BERNTHAL:
The day that somebody goes to cour,t+and challenges the Commission's cost benefit 16 17 evaluation on a rule --
18 COMMISSIONER ASSELSTINE:
That's right.
19 COMMISSIONER BERNTHAL:
-- and they will be able to 20 do that, what we in effect would have done has opened up a 21 whole new area of possible litigation.
The Regulatory Reform 22 Task Force in the paper that Mr. Tourtelotte prepared 23 recognizes that possibility.
There is a list of pros and cons 24 there and we all can agree or disagree on what the balance is, 25 but I certainly did not see a resounding endorsement of the
21 1
concept of applying this layering of a rule on a rulemaking 2
procedure.
3 COMMISSIONER ROBERTS:
What are you saying, Fred?
4 You are apprehensive about some licensee being able to make us 5
accountable for our actions or an intervenor?
I don't have 6
any problem with that at all 7
COMMISSIONER BERNTHAL:
No.
An intervenor can go to 8
court or a licensee can go to court, either way you wish, and 9
can say "You didn't do that cost benefit analysis right that 10 is in your rule under backfitting that you apply to the rule 11 you just made here."
12 COMMISSIONER ASSELSTINE:
Instead of dealing with 13 the problem which is management of the process, what you are 14 doing is creating a whole bunch of new procedural hurdles that 15 are just going to give people the opportunities to thwart or 16 oppose even legitimate efforts to impose new safety 17 requirements.
18 COMMISSIONER ZECH:
I don't see it that way.
19 COMMISSIONER ROBERTS:
I don't see that
.20 i'nterpretation.
21 COMMISSIONER ZECH:
It sounds to me, Mr. Chairman, 22 like we are probably not ready to vote.
23 (Laughter.)
24 COMMISSIONER BERNTHAL:
That is probably an accurate 25 appraisal.
22 1
CHAIRMAN PALLADINO:
I understand that there is a 2
three to two vote that is ready.
3 COMMISSIONER ZECH:
I am ready to vote.
4 COMMISSIONER ROBERTS:
I am ready.
5 COMMISSIONER ZECH:
If you want to vote, let's vote.
6 COMMISSIONER ASSELSTINE:
Maybe that is the thing to 7
do.
8 CHAIRMAN PALLADINO:
I still think that there may be 9
some value in a little more dialogue on this rulemaking issue 1G because in truth, all rulemaking requires cost benefit 11 analysis.
12 COMMISSIONER BERNTHAL:
That's right.
t
13 CHAIRMAN PALLADINO:
It will be done.
I think that 14 any rule that we pass will automatically mean that the 15 Commission has made a decision that it is worth doing.
16 So I don't think that this has to be in there.
I 17 know that I don't get agreement on that.
However, I don't 18 think there is anything wrong in leaving it in there because 19 it just does what we normally do.
20 So I could leave it out or I could leave it in but I 21 think on some of these things, it is better to join a majority 22 when there is one than to keep on arguing which way to go with 23 split votes.
24 It doesn't bother me to leave it in and it doesn't 25 bother me to leave it out.
I think the result is the same.
23 1
COMMISSIONER DERNTHAL:
I would just say that my 2
position does everything that the Commission set out to do 3
here.
We did not set out to apply this procedure to 4
rulemaking.
We set out to apply it to backfitting.
My 5
positi,on applies the discipline that we intended to apply to 6
backfitting.
7 It does not, hcwever, attempt to place a rule on our 8
own rule-making procedures under the Administrative Procedures 9
Act and I think that is manifestly unwise and we have had a 10 good deal of advice that I think is worth hearing again that 11 would concur with that point of view.
12 CHAIRMAN PALLADINO:
Let me ask you this, Fred.
Do 13 I understand that if this were changed, if it were changed, if 14 that part were crossed out that you suggested be crossed out, 15 that you would vote in favor of the rule?
16 COMMISSIONER BERNTHAL:
Oh, yes.
I think there are 17 other editorial changes and whatnot, but I don't think that we 18 have any serious disagreement over that.
19 CHAIRMAN PALLADINO:
I think it is worth another 20 hour2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> and half worth of discussion.
21 COMMISSIONER ASSELSTINE:
I suspect for myself, my 22 differences are more fundamental and sufficiently intractable, 23 that they are not easily resolved.
24 CHAIRMAN PALLADINO:
Let's try to agree to meet at 25 2:15.
Is that reasonable?
24 1
COMMISSIONER ZECH:
Sure.
Fine.
2 COMMISSIONER BERNTHAL:
It is called a " sweat box" 3
here.
4 (Laughter.)
5 CHAIRMAN PALLADINO:
We either have it or we don't 6
have it in which case we will vote whatever way we are going 7
to vote.
8 COMMISSIONER BERNTHAL:
I would just say and let me 9
make a suggestion to Jim in the public meeting here, I share 10 the concern over the treatment of uncertainties.
I am not 11 convinced though that needs to be addressed within the 12 confines of the backfit r u l e..
13 It perhaps could have been addressed and maybe 14 should have been addressed in the severe accident policy 15 rule.
It could also be addressed in the safety goal.
I think 16 there are other forums where we could meet out that issue.
17 In fact, I am not at all sure that this is the best 18 area to bring it up but I realize that you fee 1 strongly about 19 it and you pick your own forum but I am not sure that this is 20 the best one.
21 CHAIRMAN PALLADINO:
Let's meet at 2:15.
22 COMMISSIONER ROBERTS:
Can we scratch agenda 23 planning?
Do we need it?
24 COMMISSIONER BERNTHAL:
We hardly need it.
25 CHAIRMAN PALLADINO:
I will come to that in just a
25 i
second.
2 COMMISSIONER ROBERTS:
All right.
I am sorry.
3 CHAIRMAN PALLADINO:
Let's meet at 2:15 with the 4
objective of voting and I would encourage my two colleagues on 5
my-right to at least have some dialogue with Commissioner 6
Bernthal and I will also have further dialogue.
I think I 7
have expressed my position on that.
8 COMMISSIONER ASSELSTINE:
I would say that if you 9.
can resolve the rulemaking issue, I don't have any problem 10' with voting on the rule but I am going to have views that 11 address some of the broader concerns that I have.
12 CHAIRMAN PALLADINO:
All right.
13 COMMISSIONER ASSELSTINE:
That will take a little 14 while to put those together.
15 CHAIRMAN PALLADINO:
That can come later.
We will 16 vote at 2:15 and we will make an effort to see if we can't 17 accommodate this one point.
18 Now we had another item that was tentatively on the 19 agenda for rulemaking and I don't know if I have to have a 20 short notice meeting to even discuss it.
21 MR. CHILK:
I don't think you need it to discuss it.
22 CHAIRMAN PALLADINO:
Let me say what I am going to 23 say and if I get too far, stop me, OGC or SECY.
24 We had considered earlier this week revisions to 25 Part 20, During the course of the meeting I asked the
26 1
representative from General Counsel if we had to affirm it and 2
his off-the-cuff recommendation was yes, he thought we had to 3
affirm it so I came and announced that we would affirm it.
4 It turns out that we don't have to affirm it.
That 5
is the revised OGC opinion so I am going to make the following 6
proposal.
I understand that there are four votes for 7
approving going out with this Part 20.
8 The only hold up is Commissioner Asselstine has not 9
had a chance to cope with it.
I am going to say, let us note 10 that t**re are four votes and let Commissioner Asselstine 11 complete his vote within the next few 12 COMMISSIONER ASSELSTINE:
Few days.
13 CHAIRMAN PALLADINO:
days.
14 COMMISSIONER ASSELSTINE:
Just as soon as I can read 15 the discussion from Tuesday's meeting and then I will be 16 prepared to vote on it.
l i
17 CHAIRMAN PALLADINO:
All right I will publicly 18 announce that we will not have to affirm it and therefore, 19 will not.
I 20 COMMISSIONER ASSELSTINE:
Good.
That is a good l
21 approach.
22 CHAIRMAN PALLADINO:
It will be done by notation.
23 Anything more to come before us at this time?
24 (No response.)
25 CHAIRMAN PALLADINO:
All right We will stand
27 1
adjourned and come back.together at 2:15.
2 (whereupon, the Commission meeting was adjourned at 3
1:11 o' cloak p.m.,
to reconvene at the Call of the Chair.)
4 5
6 7
8 9
10 1
11 12 13 14 15 16 i
17 18 19 20 21 22 i
23 24 25
28 1
(2:28 p.m.)
2 CHAIRMAN PALLADINO:
Please come to order.
3 This is a continuation of our earlier 4
affirmation / discussion session.
I understand that during the 5
break there have been attempts to come up with compromise 6
wording, and it is also my understanding that it has not yet 7
succeeded or has not succeeded, and, therefore, I guess we 8
need to each of us express our positions, and I suggest we 9
vote.
I gather that time is not going to help us on this 10 situation.
11 COMMISSIONER BERNTHAL:
- Well, I'm not sure that it 12 would.
13 Let me just suggest, unfortunately I haven't had a l
14 chance to talk to Jim about this and determine whether there l
I don't consider it at all outside the procedures i
15 is some 16 that are followed on the Hill everyday to lose a vote on an l
17 amendment and still vote for the bill, having expressed one's 18 views on the amendment, and I would suggest that that might be l
l 19 a possibility here.
20 I want to make the point that I would vote for this 21 rule under the condition that we not put in some legally
.22 binding -- legally binding -- procedures on the Commission, 23 which I believe are unwise, I believe offer the opportunity to 24 litigate eighteen items instead of six, or whatever the number 25 is under the Administrative Procedures Act, and I think it's
{
29 1
something we're going to regret and a lot of people are going i
2 to regret in the future.
and I thought we were close 3
If there is some way 4
to that -- some way that these can be indicated as guidelines, 5
internal guidelines to our Staff and to ourselves, I guess, 6
without creating that legally binding, additional procedural 7
basis for the Commission itself, then I'm prepared to vote for 8
this, but if there is no room for give on that, then I'm going w
9 to vote against the rule.
10 COMMISSIONER ASSELSTINE:
In fact, that's precisely 11 what we've already done.
The CRGR procedures apply to 12 rulemaking, and they include those kinds of elements as 13 directions from the Commission to the Staff on what they are 14 to do, and those are supplemented by the procedures that the 15 Commission has adopted on well, plant-specific ones don't 16 matter, because those aren't rules, but, yes, that's precisely 17 what the agency has already done.
This takes it a step 18 farther and makes it a binding regulation on the Commission.
19 COMMISSIONER BERNTHAL:
The only people who we're 20 are binding here and opening up to all sort of legal 21 contrivances in court are ourselves, and I think that's 22 unwise.
23 So that's where I am.
I can vote for this rule, if 24 we don't place additional legal constraints on the Commission 25 itself, because that's what we're proposing to do.
We're
o 30 1
constricting our own freedom to act.
2 Otherwise, I'm going to have to vote against it.
So 3
with that in mind, if there is t ime 't h a t we can work out a 4
satisfactory language -- and I thought we were at least part, I agree to that principle.
I am willing to 5
way there 6
diddle with the very short-term draft language that I saw, but 7
if we're going to create a legally binding additional set of 8
rulemaking criteria, then I'm going to vote against it, 9
because I think that's a mistake.
10 COMMISSIONER ROBERTS:
Well, I disagree with your 11 interpretation of what would follow.
I'm sorry, I just don't 12 Lgree with you.
13 COMMISSIONER BERNTHAL:
Well, if there are eighteen 14 targets, it's easier than six.
That's sort of the way I see 15 it.
That's really the bottom line for me.
16 CHAIRMAN PALLADINO:
Well', one possibility to follow 17 your principle, and I'll try it, and then I'll call for a 18 vote.
I know you have to leave in one minute.
19 COMMISSIONER BERNTHAL:
Two minutes ago.
20 CHAIRMAN PALLADINO:
Two minutes ago.
Leave the 21 words in, put an asterisk, and say, "This does not create 22 enforceable procedural requirements."
23 COMMISSIONER ASSELSTINE:
" T ?. i s is a rule, but it's 24 not a rule?"
25 CLaughter.3
e 31 1
CHAIRMAN PALLADINO:
- Well, I'm just trying to adopt 2
the principle of your 3
COMMISSIONER ASSELSTINE:
I'll be quiet.
I won't 4
say anything.
5 CHAIRMAN PALLADINO:
Well, is there -- would you 6
like to 7
COMMISSIONER ROBERTS:
I'm ready to affirm my vote.
8 COMMISSIONER BERNTHAL:
I think, if we want to get a 9
vote out right now, the best thing for me to do is to say that I've said the conditions under which I can vote for 10 under 11 the rule, and I think I've been clear enough, are that we not 12 impose legally binding constrictions on the Commission itself 13 for its rulemaking processes.
And we had some language that 14 would have avoided that difficulty and left the rest of the 15 stuff in there intact, and if we can reach agreement on such 16 language, then my vote is in favor of the rule.
Otherwise, if 17 Sam can remember all this, then I affirm my vote in the other 18 direction.
19 So if I can do that under our rules of procedure for 20 voting, we're all done.
21 COMMISSIONER ZECH:
- Well, I'd like to say, 22 Mr. Chairman, before we do vote, that I've tried very hard to s
23 come up with a compromise position or a satisfactory you know, I'm just not satisfied 24 position.
I think I've 25 with it, and I regret that, but I think I just have to stand
- - -~
)
I 32 1
on my original viewpoint.
2 COMMISSIONER ROBERTS:
As do I 3
CHAIRMAN PALLADINO-And then I said I.could live 4
with it either way.
5
[ Laughter.]
6 I think, to get things off the dime, I'll support 7
the rule as proposed.
Now that would mean that we wouldn't 8
get the benefit of your revision, but I think we have to move 9
one way or the other.
10 The only other option I'd be willing to consider, 11 and I'm not sure whether the Commission is willing to this, is 12 to give ourselves more time to write this up.
13 COMMISSIONER BERNTHAL:
Time is running out, that's 14 for sure.
15 CHAIRMAN PALLADINO:
Yes.
16 COMMISSIONER BERNTHAL:
Look, we can always 17 reconsider, I suppose, so if you want to vote --
18 CHAIRMAN PALLADINO:
Yes.
I suggest we go ahead and 19 vote and affirm our votes.
20 How should we proceed, Mr. Secretary?
21 MR. CHILK:
Well, either way.
Mr. Chairman, as I 22 have heard your discussion, yourself, Commissioner Roberts, 23 Commissioner Zech have voted to approve the final rule, which 24 is attached to the memorandum that we distributed on the 31st 25 of July.
Commissioner Bernthal and Commissioner Asselstine
e l
l 33 1'
disapprove.
2 COMMISSIONER ASSELSTINE:
Just before you do that, 3
let me say just one thing.
I really think you're making a
+
4 mistake by rushing headlong into this.
I think you're going 5
to find yourselves subject to a lot of criticisms for things 6
that are in this rule and for the extreme position that this 7
rule takes.
And you know you've been in that position on some 8
other things recently.
It hasn't done your credibility any 9
good or the credibility of this agency, and I really think 10 this is going to be a serious one.
And I can tell you that my 11 comments are going to be as sharp and as pointed on this as 12 any that I've done.
13 I really think that it's not well-considered.
And 14 to the extent that you are rushing headlong into it, you just 15 open yourselves up to those kinds of concerns all the more.
16 But go ahead, Sam.
17 COMMISSIONER ZECH:
Let me just say that I 18 appreciate that viewpoint.
On the other hand, it is my 19 understanding that this very important issue has been under 20 consideration for a number of years, something like four 21 years, I guess, and I don't think we're rushing into it.
It 22 certainly is an important issue.
23 It may not be a perfect rule, in my judgment, but I 24 think it's a necessary rule.
It's a good rule.
It's at least 25 a step in the right direction.
-,e-
e 34 1
I feel we're doing the right thing, and it seems to 2
me that it's time to get on with it.
3 CHAIRMAN PALLADINO:
I would propose one amendment, 4
and that is that we let the release to the Federal Register 5
rest for three days, just in case there's any 6
COMMISSIONER ASSELSTINE:
Well, Mr. Chairman, it's 7
going to take me a few days to get 8
MR. CHILK:
Well, we have until Friday, whatever.
9 CHAIRMAN PALLADINO:
Okay, good.
10 MR. CHILD:
So as we stand, yourself, Chairman 11 Palladino, Commissioner Roberts, Commissioner Zech approve the 12 rule.
Commissioners Bernthal and Asselstine disapprove it for 13 the reasons they have stated your votes.
14 CHAIRMAN PALLADINO:
Aye.
15 COMMISSIONER ROBERTS:
Aye.
16 COMMISSIONER ZECH:
Aye.
17 COMMISSIONER ASSELSTINE:
No.
18 COMMISSIONER BERNTHAL:
No.
19 CHAIRMAN PALLADINO:
All right.
If there isn't 20 anything more to come before us, thank you.
21 CWhereupon, at 2:38 o' clock, p.m.,
the affirmation 22 meeting was concluded.]
23 24 25
s.
s.u 1
CERTIFICATE OF OFFIC14L REPORTER 2
3 4
5 This is to certify that the attached proceedings 6
before the United States Nuclear Regulatory Commission in the 7
matter of:
COMMISSION MEETING S
9 Name of Proceeding: Affirmation / Discussion and Vote (Public Meeting) 10 11 Cocl< e t No.
12 Place:
Washington, D. C.
la cate: Thursday, August 1, 1985 14 15 were held as herein appears and that this is the original 16 transcript thereof for the file of the United States Nuclear 17 Regulatory Commission.
13 (Signature)
%,j yy(
---Q-j 39 (Typed Name of Reportder) Marilynn Nations 20 21 22 23 Ann Riley & Associates, Ltd.
24 25
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